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Bangalore District Court

Adithya Suryamohan vs Aged About 43 Years on 30 July, 2022

                            1               Crl.A.No.240/2020

KABC010039542020




   IN THE COURT OF THE LIX ADDL.CITY CIVIL &
    SESSIONS JUDGE (CCH-60) AT BENGALURU)

           Dated this 28th day of July, 2022

                     -: P R E S E N T :-
             Sri.Sadananda Nagappa Naik,B.A.L, L.L.B.,
        LIX ADDL.CITY CIVIL & SESSIONS JUDGE, CCH-60
                    BENGALURU CITY
                   Crl.Appeal No.240/2020


Appellant:             Adithya Suryamohan
Accused                Aged about 43 years
                       R/at #SF-5, Ajantha Gardens,
                       Uttarahalli Main Road,
                       Ankappa Layout, Bengaluru-61.

                                            (By Sri.S.M, Advocate)

Respondent/            Shree Charan Chits Pvt.Ltd
Complainant            Registered Office at #S-1865/3,
                       1st H Main, D Block, II Stage,
                       Rajajinagar, Bengaluru-10.

                                           (By Sri.H.S.A, Advocate)

                     JUDGMENT

Appellant has filed this appeal U/s.374(3) of Cr.P.C., being aggrieved by the judgment of conviction and order 2 Crl.A.No.240/2020 of sentence passed in C.C.No.33152/2014 dated 30.11.2019 on the file of XII Additional Chief Metropolitan Magistrate, Bengaluru.

2. Parties to this appeal shall be referred as per their ranking before the trial court for the purpose of convenience and for better appreciation of their contentions.

3. In the memorandum of appeal, Appellant has submitted that, trial court has erroneously, without applying the mind has passed the order. Complainant failed to prove the existence of legally enforceable debt and liability. Complaint filed by the complainant is false, frivolous and vexatious and the same is not maintainable. The very taking of cognizance by this Court against the accused itself illegal. The complainant never stated that signature on Ex.P.6 is that of accused. He had only stated that, he does not know who had signed on Ex.P.6 postal acknowledgement. Further submitted that, there is no pleading in the complaint as to proper service of notice and on whom the notice was served by the postman. As contemplated under Sec.114(g) & (f) of Indian Evidence Act and by combined reading of Clauses 138 (b) & (c) of the Negotiable Instruments Act, unless a notice in writing is received by the drawer of such cheque, the offence would not be constituted. Therefore, receipt of notice is 3 Crl.A.No.240/2020 absolutely necessary. The complainant failed to discharge his part of burden of proof. The trial court has not examined the plea taken by the accused regarding issuance of blank cheques before commencement of chit business. Thus, if the cheque is issued prior to the chit business, and not for the default installments, and it gets dishonoured, offence under Sec.138 of Negotiable Instrument Act will not be attracted. The cheque amount involved is Rs.4,27,474/- and the complainant pleaded that, the same was issued after receipt of legal notice dated: 24.07.2014 by the accused after meeting the complainant which is unbelievable. The legal notice dated: 27.07.2014 is not produced to establish that, the cheque was issued only after receipt of legal notice. The respondent during his evidence has failed to produce any cogent material to show that, on 18.09.2014, accused approached the complainant and issued cheque dated:

18.09.2014 for Rs.4,27,475/-. Since legal notice itself is not produced before the court, as no such notice was issued. For the aforesaid reasons, Appellant has prayed to interfere into the impugned judgment and order and set aside the same.

4. Documents produced along with appeal by the Appellant are certified copy of the judgment and order of conviction dated 30.11.2019.

5. Respondent appeared before the Court through its counsel. Heard arguments. T.C.R. were called for reference in this appeal.

6. Now, following are points that arising for consideration:

1.Whether the Complainant has proved that, the Cheque issued by the Accused company was dishonoured as "Funds insufficient" and thereby the Accused has committed the offence punishable under Section 138 of the Negotiable Instruments Act ?

2.Whether in the light of evidence and material brought before the court, trial court is justified in convicting Accused/Appellants for the offence punishable U/s.138 of N.I.Act and sentencing Accused for the said offence?

3.Whether interference of this court is necessitated?

4.What Order?

7. It is answered for the aforesaid points as under:-

Point No.1 : In the Affirmative Point No.2 : Partly in the affirmative Point No.3 : Partly in the affirmative Point No.4: As per final order below, for 5 Crl.A.No.240/2020 the following:-

REASONS

8. POINTS Nos.1 to 3 :- These three points are taken together for common discussions in order to avoid repetition of facts.

Brief facts of the Complainant case is that, the appellant was one of the subscribers for the chits run by the respondent and further subscriber for Ticket No.30 in chit Group No.10K/LT/11 for a chit value of Rs.10,00,000/- for a installment of months and installment payable at Rs.25,000/- per month. The respondent stated that, the appellant has a total liability of Rs.4,27,745/-. Towards the discharge of liability, accused issued cheque bearing No.510486 dated 18.09.2014 for sum of Rs. 4,27,475/- drawn on State Bank of India, Manyata Embassy Business Park Branch, Bengaluru. When the said cheque was presented by the complainant for encashment through his banker, it was returned with an endorsement "Payment Stopped by the Drawer" with a memo dated 19.09.2014. On 17.10.2014, Complainant issued legal notice through RPAD. In spite of receipt of the notice, the Accused neither replied to the notice nor paid the cheque amount to the Complainant. Therefore, Complainant filed complaint under Sec.200 Cr.P.C for the offence punishable under Sec.138 of N.I Act against the Accused.

9. Perused entire order sheets, complaint filed under Section 200 of Cr.P.C., for the offence punishable under Section 138 of N.I Act, sworn statement of the Complainant Company by way of affidavit, plea of accusation, examination-in-chief evidence of P.W.1 by way of affidavit, contents of documents at Ex.P.1 to Ex.P.9. There is no procedural defect of any nature while conducting trial relating to private complaint registered for the offence punishable under Section138 of N.I Act.

10. The learned counsel for the Accused submits that the learned Magistrate has not taken into consideration that, the issuance of blank cheque before commencement of chit business. The amount involved is Rs.4,27,474/- and the pleads that, the same was issued after receipt of legal notice. There is no material regarding issuance of cheque by the accused after receipt of legal notice, in the absence of the plea of the accused cannot be accepted. Since, the legal notice dated: 24.07.2014 itself is not produced before the court as such notice was issued and hence the complaint itself is not maintainable.

11. Learned counsel for the respondent has submitted that the learned Magistrate has rightly passed the judgment and order of conviction against the appellant. There is no error or mistake committed by the 7 Crl.A.No.240/2020 Court below. Hence, he prays to confirm the judgment and order of conviction passed by the trial Court.

12. Before considering the point whether accused has succeeded to rebut presumptions and established his defence to the extent of probabilities, it is just and necessary to accumulate undisputed facts in this case.

13. It is not in dispute that bounced cheque belongs to the bank account of the accused. It is also not in dispute that, signature appearing on the cheque is the signature of the accused. It is not in dispute that, cheque presented by the complainant came to be dishonoured by the banker of the accused for the reason stated in the dishonour memo.

14. So far as appreciation of evidence is concerned, Pw.1 has reiterated ingredients of complaint in his examination-in-chief affidavit. Ex.P.1 is the Board Resolution Extract. Ex.P2 is the cheque. Ex.P3 is the Bank Endorsement made it clear that, cheque issued by the accused to the complainant came to be dishonoured by the banker of the accused. Ex.P.4 is the legal notice dated: 17.10.2014. Ex.P5 is the postal receipt. Ex.P6 is the postal acknowledgement receipt. Ex.P.7 is the Cheeti Kararu Patra. Ex.P.8 is the Voucher and Ex.P.9 is the Ledger account extract. Therefore, the complainant has proved that the cheque issued by the Accused is 8 Crl.A.No.240/2020 dishonored. Thereafter, burden shifts on the accused as per presumptions coming into play U/s.118 and 139 of N.I.Act in the form of reverse onus on the accused to rebut presumptions.

15. In the present case, the defence set up by the accused is that the judgment and order of conviction passed by the trial Court is perverse and no opportunity provided to the accused to further cross examine the complainant and to adduce evidence on his side. I have perused the order sheet maintained by the trial Court. From the perusal of it, it is clear that the statement of accused under section 313 of Cr.P.C has been recorded. Thereafter, the counsel for Accused filed an application under Sec.311 of Cr.P.C for further cross of PW-1. The same was allowed. That on 19-11-2019, the Accused was absent. E.P filed and allowed for the day. PW1 was not present. The court ordered that inspite of providing sufficient time, PW1 has not tendered himself for further cross and posted the matter defence evidence to 21.11.2019. That on 21-11-2019, both counsels were present. Accused was absent. E.P was filed and allowed for the day and the court posted the matter for defence evidence. That on 25-11-2019, Advocate for complainant was present. There was no representation for Accused. Hence, the trial court took the defence evidence as nil and posted the matter for Judgment. Though, the trial 9 Crl.A.No.240/2020 court has given sufficient opportunity to the Accused to put forth his contentions prior to recall of PW-1, the Accused was not diligent in contesting the case. However, when the recall application was allowed and PW-1 was recalled, the trial court ought to have drawn adverse inference against the PW-1 for not tendering for further cross examination. The trial court would have also exercised the power conferred under Sec.256 of Cr.P.C upon providing further sufficient opportunity to the complainant. The same is not forthcoming in the order sheet. As the Appellant has now come up with the appeal to give him an opportunity, it is just and proper to remand the matter to the trial court to permit him to further cross examine PW-1 and consider the defence of the Accused/Appellant. Hence, from this point of view, the judgment and order of conviction passed by the trial Court is required to be interfered and to direct the trial Court to provide an opportunity to the accused to further cross examine PW 1 and to adduce his defence evidence.

16. POINT No.4 :- In view of findings on the above points No.1 to 3, this criminal appeal is liable to be allowed by setting aside impugned judgment of conviction and order of sentence. Hence, following order is made:

ORDER Invoking provisions of Section 386 of Cr.P.C., this Criminal Appeal filed U/s. 374(3) is allowed.

         Consequently,        impugned     judgment        of
     conviction    and        order   of    sentence       in

C.C.No.33152/2019 dated 30.11.2019 on the file of XII ACMM, Bengaluru is hereby set aside. The matter is remanded to trial court. The consider the matter of afresh from the stage of further cross of PW.1.

Send the copy of the Judgment along with the records to the lower court.

(Dictated to the Judgment-Writer directly on computer, script typed by him and corrected, signed and then pronounced by me in the open court on this 30 th day of July, 2022.) (Sadananda Nagappa Naik) LIX ADDL.CITY CIVIL & SESSIONS JUDGE, CCH-60, BENGALURU CITY.